Faculty of Information Quarterly Vol 2, No 2 (Feb/Mar 2010)

The Grey Area: Abstract is an element of U.S. Should Sampling law that serves to protect limited reproductions of copyrighted in Rap, Hip-Hop materials in specific contexts. Unfortunately, these contexts are not well-defined in terms of musical and Mash-up sampling. Many musical artists use unlicensed samples in their work, be Considered especially rap, hip-hop and mash-up artists, for whom sampling is integral to Fair Use? their craft. The samples used may be very short (one or two seconds), or

modified beyond recognition. Others Emily Vella are much longer, recognizable clips of music, often heard in mash-up. Emily Vella is a Master of Information However, the nature of the sample student at the University of Toronto itself seems to have little to do with iSchool. In 2009, she completed an whether an artist is guilty of copyright Honours Bachelor of Arts in English violation and often a lawsuit is simply Literature from the University of profiting the record company who Western Ontario. There, she holds the copyright, and not the completed her undergraduate thesis of the original in creative writing. Her research and artist. By examining case law, the work artistic interests converge on the of legal and copyright scholars, and topics of art and copyright, and the postmodernist aesthetic in art, I information-seeking behaviour in the have found that extending or creative process. This paper was clarifying the terms of fair use would written for INF1001 Knowledge and be beneficial for continued musical Information in Society. innovation. However, in order to [email protected] balance the rights of all stakeholders, a very careful treatment of this

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extension or clarification will be by securing for limited times to authors and needed. inventors the exclusive right to their respective writings and discoveries” (Art. I, § 8, cl. 8). This Contemporary musical artists, clause is the basis for U.S. copyright law and it is particularly in the genres of rap, hip-hop and particularly interesting because it suggests that mash-up, use unlicensed samples of other the copyright of ideas is useful for promoting artists’ music in the creation of their own works. progress, but that copyright should not last Whether or not this practice is legal, or should indefinitely. As Lessig (2004) says, “Creativity become legal, is a complex problem without an depends upon owners of creativity having less easy answer. While this practice occurs than perfect control” (p.58). This is why U.S. internationally, my discussion will be grounded copyright law was amended in 1976 to permit in U.S. copyright law. This paper will synthesize ‘fair use’ of copyrighted materials without risk of a variety of sources to supplement the infringement. The U.S. Copyright Act, Section discussion of this problem. First discuss 107, states “the various purposes for which the the United States Constitution in regards to reproduction of a particular work may be copyright, and section 107 of U.S. copyright law, considered fair, such as criticism, comment, which outlines the terms of fair use. Next, I will news reporting, teaching, scholarship, and examine the landmark Bridgeport Music, Inc. v. research” (U.S. Copyright Office, 2009, ¶ 2). As Dimension 410 F.3d 792 case and what it these terms are relatively vague (for example, means for the future of sampling, and then what exactly constitutes ‘comment’?) there are proceed to examine the culture and influence of four tests that a court may use to determine mash-up artists and why it is integral to whether or not reproduction of copyrighted continued musical innovation. To support this materials is infringement: argument, I will draw upon the importance of 1. The purpose and character of the the postmodern aesthetic in contemporary art use, including whether such use is of a and the work of scholar Lawrence commercial nature or is for nonprofit Lessig. I will argue that the current state of U.S. educational purposes; law regarding sampling has become 2. The nature of the copyrighted work; unreasonable and stifles creativity, and that rap, 3. The amount and substantiality of hip-hop, and mash-up artists deserve to be the portion used in relation to the copyrighted legally protected, whether through an work as a whole amendment to the terms of fair use, or through 4. The effect of the use upon the specific legislation. potential market for or value of the copyrighted According to the U.S. Constitution, work (U.S. Copyright Office, 2009, ¶ 2 ). “The Congress shall have power [. . .] [t]o promote the progress of science and useful arts,

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Depending on the specifics of a case, artists for whom partially reproducing music is any combination of these tests could be used to the nature of their artistic expression. This is demonstrate fair use, as well as other factors most often seen in the music of rap, hip-hop, such as “bad behaviour by one of the parties, and mash-up artists. These individuals thrive on the copyright owner’s right to privacy, and sampling a variety of music in order to create a whether the motive of the lawsuit is to suppress new whole. The most extreme examples of unwelcome criticism” (Heins & Beckles, 2005, sampling are often seen in works by p. 3). In short, what constitutes fair use in one independent artists— and Girl case may not necessarily hold for all cases. Talk will be closely examined—as the legal I will now turn my focus specifically to logistics are risky for a major record label. music, and examine the parties who have a stake Finally, we have the consumers of rap, hip-hop, in its copyrighting and subsequent fair use (or, and mash-up music, who want to listen to good, perhaps, not so fair use). First, we have the innovative music at a low cost. With these artist, or group of artists, who create a song. stakeholders in mind, I will explore the current Assuming these artists are American, their song legal and ideological trends in music sampling. is copyrighted “the moment it is created and In 2005, Bridgeport Music, Inc. filed a fixed in a tangible form that it is perceptible lawsuit against Dimension Films over the use of either directly or with the aid of a machine or one chord from a George Clinton’s ‘Get Off device” (U.S. Copyright Office, 2006, ¶ 4). Your Ass and Jam’ in an N.W.A song (Wu, Independent artists will own their ; 2006). N.W.A. “changed the pitch, and looped however, an artist with a recording contract will the sound in the background” so that the chord most likely not own the copyright to their sounded like a siren (Wu, 2006, ¶ 7). Bridgeport music, or will be a partial owner. As I will won, and the results of the lawsuit created the discuss in detail, some artists may welcome the rule “that any sampling, no matter how minimal reproduction of their music under fair use, while or undetectable, is a ” other artists may not. Secondly, there is the (Wu, 2006, ¶ 7). It was determined that record company, who most likely owns the obtaining a licence for any sampled music does copyright to all of their artists’ songs. Like any not have a negative effect on creativity (Wu, business, record companies aim to make money, 2006). The fair use argument was not used by and as I will be demonstrating through case law, the defendant; instead, they focused on the de record companies have a history of suing those minimis defence (that the issue was so who reproduce even the smallest portion of irrelevant, it need not be regarded by the court) their copyrighted music. While this can serve to (Bridgeport Music, Inc. v. Dimension Films, 2005). benefit the artist and protect intellectual However, Judge Guy noted that, if the case were property, it can also be exploitative, greedy and to go back to court, the trial judge would be undermine fair use. Thirdly, there are the other “free to consider this defense [fair use]” but that

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the Appellate Court “[expressed] no opinion on have obtained the copyrights to George its applicability to these facts” (Bridgeport Music, Clinton’s music illegally, as when Clinton was Inc. v. Dimension Films, 2005, ¶ 44). While this asked how Bridgeport’s Armen Boladian case then has no formal stance on fair use in acquired the rights to his music, Clinton replied, terms of sampling, it has still greatly influenced “he just stole 'em” (Wu, 2006, ¶ 4). Clinton has the legality of sampling, and has even found also voiced his support for the sampling of his international reach. The very first sampling case own music, stating, “it [is] a way to get back on ever heard by Germany’s Federal Supreme the radio” (Wu, 2006, ¶ 15). So, in Bridgeport Court (Metall Auf Metall) referenced Bridgeport Music, Inc. v. Dimension Films, not only were Music, Inc. v. Dimension Films as proof that even Dimension Films and N.W.A disadvantaged, sampling the “smallest pieces of sound” is George Clinton, the artist who wrote the infringement (Conley & Braegelmann, 2009). original song, did not benefit. Furthermore, this Who benefits and who is disadvantaged decision will affect all subsequent sampling because of these decisions? In the case of Metall cases in the U.S. (as well as exert some influence Auf Metall, the plaintiff was the musical group internationally) and will therefore harm even Kraftwerk, who successfully sued another artist more artists. According to Bettig (1996), this is for using a two second beat from one of their an example of how copyright law in the U.S. is songs (Conley & Braegelmann, 2009). This is an “a process through which the publisher takes example of an artist benefitting from exercising control of and benefits the most from the sole claim to their copyrighted materials. While author’s copyright privileges” (p.28). Bettig some might consider two seconds of music to (1996) sees copyright as a purely capitalistic be irrelevant in terms of copyright, Kraftwerk venture with no benefit to the artist because of did not agree and took legal action. In this case, what he calls “the essential connection between one artist benefits while another artist is the rise of capitalism, [and] the extension of disadvantaged. This perhaps does not seem so commodity relations into literary and artistic troublesome, as copyright is supposed to be domains” (p. 9). Bridgeport Music, Inc. v. Dimension “the servant of artists” (Wu, 2006, ¶ 16). Films illustrates how the prosecution of However, the opposite is true in Bridgeport Music, sampling does not necessarily benefit artists, and Inc. v. Dimension Films. Bridgeport Music, Inc. is a hinders the subsequent creation of music. so-called sample troll. It “[holds] portfolios of Why was the de minimis defence used old rights (sometimes accumulated in dubious instead of fair use? It is difficult to know for fashion)” and makes money through copyright certain, but I argue that it is because fair use, lawsuits (Wu, 2006, ¶ 2 ). Bridgeport did not sue while easily applicable to academic writing, news Dimension Films for George Clinton’s benefit; reporting, and classroom learning, does not so in fact, Clinton received no money from that easily support artists. As noted, fair use covers settlement (Wu, 2006). Bridgeport also may criticism, comment, and was later amended to

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include parody (Seltzer, 1979). Sampling does 2000, p. 279). When studying art, a ‘text’ can be not fall under any of those categories. However, a written work, a , a painting, a sculpture, a until Bridgeport Music, Inc. v. Dimension Films, the song, or any other form of artistic expression. de minimis defence had been an effective Additionally, bricolage is the “assembling of argument in sampling lawsuits (Heins & different styles, textures, genres or discourses” Beckles, 2005). Does this mean that sampling (Hayward, 2000, p. 280). without licensing is actually a gross violation of While traditional uses of sampling in intellectual property? Or do the existing fair use rap and hip-hop can be seen to employ laws not adequately protect an important artistic intertextuality and bricolage, it becomes even technique? more apparent when we look at mash-up. DJs To answer this question, while Danger Mouse (Brian Burton) and remembering that U.S. copyright law is based on (Gregg Gillis) have both heavily relied on the notion of artistic progress and innovation, sampling in an innovative way to create works we must now discuss an important trend in art that challenge society’s perception of music. and ideology: postmodernism. As Danger Mouse mixed White Album postmodernism is a complex movement which and Jay-Z’s Black Album to create what he called applies to a wide variety of fields, it seems best . In an interview in the to provide an operational definition with a documentary (2007) Danger broad scope. Klages (2003) defines Mouse said of the album, “you have a very postmodernism as art or thought that “favors white thing, and a very black thing, apparently, reflexivity and self-consciousness, fragmentation and then [. . .] it can make beautiful music and discontinuity [. . .], ambiguity, simultaneity, together [. . .] that’s what I’m trying to do, and an emphasis on the destructured, change people’s perspectives about music and decentered, dehumanized subject” (¶ 12). As what you can do” (Johnsen, Christensen & Hayward (2000) writes, “the postmodern Moltke, 10:22-10:37). It is clear that Danger aesthetic relies on four [. . .] sets of concepts” of Mouse was employing intertextuality and which we will examine “intertextuality and bricolage in the creation of The Grey Album. bricolage” (p. 277). Focusing on intertextuality, Meaning is created through the contrasting Hayward (2000) recounts how filmmaker natures of the different texts, as well as the Quentin Tarantino based the character Butch in mixing of genres. Although Danger Mouse and Pulp Fiction on specific characters from 1950s online distributors of the album were making no movies. The storylines from Pulp Fiction are also money from The Grey Album, Capitol/EMI lifted from various pulp fiction novels demanded that they stop distribution, and (Hayward, 2000). Tarantino uses intertextuality financially compensate the company (Heins & so that meaning may be created from “the Beckles, 2005). However, “Hundreds of Web relation between two or more texts” (Hayward, sites” chose February 24, 2004 as ‘Grey

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Tuesday’ where they would make the album do it, it would still take me [. . .] fifty years to go available “as a gesture of protest against a through the legal hassle” (Johnsen, Christensen copyright system that fails to acknowledge the & Moltke 2007, 12:25-12:57). Despite having importance of mixing and sampling to musical used hundreds of unlicensed samples, Girl Talk creation” (Heins & Beckles, 2005, p.35). has not been approached with a lawsuit, but he Whether or not a court would agree, one believes that if he was, he would be protected website called Downhill Battle said they had a under fair use (Levine, 2008). As previously “fair-use right to post this music under current discussed, that may not be correct. It is easy for copyright law and the public has a fair-use right a layperson to see fair use as protection for to hear it” (Heins & Beckles, 2005, p. 35). Heins artists, but it is a legal defence which is not easily and Beckles (2005) note that while the fair use applied to sampling. Without stretching the argument here may not be valid, the Electronic meaning of fair use as it is now documented, it Frontier Foundation (EFF) agreed with this would be difficult to persuade a court that Girl legal defence since the album would not Talk’s use of sampling and mixing fell under the “substitute for purchases of The White Album” categories of criticism, comment or parody. and was a “transformative use of The White Furthermore, he has made money from the sale Album, not a wholesale copy” (p.35). of his albums. Although most would agree that Girl Talk, like Danger Mouse, employs Feed the Animals is not a substitute for an sampling and mixing in his art, the creation of AC/DC, Queen or Jackson Five album, that which clearly demonstrates postmodernist fact alone would not be a strong enough aesthetics. In his newest album, Feed the Animals, argument for fair use. It is unwise for a mash-up there are over three hundred short clips of artist to believe he or she is protected by fair popular rap, rock and pop songs, mixed use, but it also seems unfair that copyright is together to create a cohesive whole (Levine, hindering the innovation of music when it 2008). He, like Danger Mouse, relies on the should be promoting the progress of art, and meaning created through a mixing of genres, therefore the postmodern aesthetics of mash-up. themes and ideas. However, unlike Danger In a TED talk on creativity and Mouse, Girl Talk sells copies of his albums copyright, Lessig (2007) quotes John Philip through his own record label called Illegal Art Sousa, who saw musical creativity in young (Levine, 2008). Girl Talk argues that if it would people when they got together to sing “the be at all feasible for him to make the album songs of the day, or the old songs”. Lessig legally, he would : “I would be happy paying (2007) uses this example to illustrate why the art royalties for every sample on the record [. . .] of mash-up (in his case, mashing up video clips but to actually licence a sample would cost and music) is integral to the continued millions of dollars, which I can’t afford. [. . .] if I innovation of culture. He argues that technology had a million dollars, or a billion dollars [. . .] to has made the mash-up a democratizing use of

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artistic expression and that the law should court telling Tarantino that Pulp Fiction is a provide means to legally create mash-up art violation of copyright, or telling contemporary (Lessig, 2007). Lessig briefly alludes to his postmodernist author Jeanette Winterson that organization, the , which the intertextuality in Sexing the Cherry is illegal. provides licences that “protect [one’s] works Those who study film and literature are often and [encourages] pre-defined uses by others” taught to recognize intertextuality, as it helps (Creative Commons, 2010, ¶ 2). The Creative them to understand the text. In these art forms, Commons is an admirable organization with a it is up to the reader/viewer to distinguish what strong ideological message about the future of aspects of the work are intertextual, and copyright, but it can only accommodate the use therefore acknowledge the original text. Of of materials that it has specifically licensed. course, in many cases, especially in literature, the Mash-up often relies on popular songs and original text is in the , although images to make a powerful statement. Lessig this is not always the case. Perhaps the (2007) uses an example of a video of George difference lies in the medium; it would take a Bush and Tony Blair edited so that they are very skilled ear to hear and recognize a two singing the song ‘Endless Love’ to each other. second sample. In mash-up, however, it is much ‘Endless Love’ is not licensed under the easier for a listener to acknowledge the original Creative Commons, and I doubt that it ever will artists, especially in the case of The Grey Album. I be. In short, the Creative Commons would be a believe it is safe to conclude that the difference friend to the art of mash-up and sampling if mostly lies in the opportunity for a record every song had a Creative Commons licence, company/copyright holder to make money on a which would not be feasible without a sampling lawsuit, as Bridgeport Music, Inc. v. dismantling of the current music business. This Dimension Films illustrates. is not to say that the music business is not in An amendment to the terms of fair use need of an overhaul, as the Internet and file- would certainly help sampling and mixing to sharing technology has changed its very nature. become a legitimate art form. However, it may However, it is nearly impossible to imagine all be even more beneficial to have specific previous copyrights being legally taken away legislation about how artists are allowed to use from record companies and given to the unlicensed samples. Theoretically, this Creative Commons at the artist’s discretion. In legislation should ensure that art was free to order for mash-up to thrive, artists need access progress while also ensuring that the wholesale to new and old material, to the popular and to reproduction of another artist’s work is not the controversial. permitted. Striking a legal balance between Sampling is a unique art form that is progress and theft is going to be difficult and scrutinized in ways that similar techniques in there will be opposition from record companies, film and literature are not. I cannot imagine a artists (original and mash-up), and music fans.

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Currently, artists like Girl Talk profit from creating and selling illegal music, and while some would argue he has a right to profit from his mash-up art, others would disagree. I find it hard to imagine a legal system that would allow for this practice, as it would be easy for an artist to exploit another artist; it would not just allow for musical innovation. Specific sampling regulations, created with artists, progress, and fairness to all in mind, would ensure artists were not disadvantaged by record companies. However, the limits of creation and art will always be tested, and therefore there will always be illegal art.

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Tarantino, Q. (Director) (1994). Pulp Fiction. References [Film]. Burbank: Miramax.

U.S. Constitution. Article I, § 8, cl. 8. Retrieved Bettig, R. (1996). Critical perspectives on the from history and philosophy of copyright. In http://www.law.cornell.edu/constitution/consti Copyrighting Culture (pp. 9-32). Boulder, CO: tution.articlei.html Westview. U.S. Copyright Office. (2006). Copyright in general. Conley, N. & Braegelmann, T. (2009). Metall auf Retrieved from metall: The importance of Kraftwerk decision http://www.copyright.gov/help/faq/faq- for the sampling of music in Germany. Journal of general.html#mywork the Copyright Society, 56, 1017-1037. Retrieved from http://ssrn.com/abstract=1504982 U.S. Copyright Office. (2009). Fair use. Retrieved from http://www.copyright.gov/fls/fl102.html Creative Commons. (2010). Creative Commons 101. Retrieved from United States Court of Appeals. (2005). http://creativecommons.ca/index.php?p=cc101 Bridgeport Music, Inc v. Dimension Films, 410 F.3d 792. Retrieved from Hayward, S. (2000). Cinema studies: The key http://ftp.resource.org/courts.gov/c/F3/410/4 concepts. New York: Routledge. 10.F3d.792.02-6521.03-5738.html

Heins, M. & Beckles, T. (2005). Will fair use Winterson, J. (1989). Sexing the Cherry. London: survive? Free expression in the age of copyright control. Bloomsbury Publishing. New York: Brennan Centre for Justice. Retrieved from Wu, T. (2006). Jay-Z versus the sample troll: The http://www.fepproject.org/policyreports/WillF shady one-man corporation that’s destroying hip-hop. airUseSurvive.pdf Retrieved from http://www.slate.com/id/2153961/ Johnsen, A., Christensen, R., & Moltke, H. (Directors) (2007). Good copy bad copy. [Film]. Denmark: Rosforth. Retrieved from http://www.goodcopybadcopy.net/

Klages, M. (2003). Postmodernism. Retrieved from http://www.colorado.edu/English/courses/E NGL2012Klages/pomo.html

Lessig, L. (2004). Free Culture. New York: Penguin. Retrieved from http://browse.reticular.info/text/collected/Fre e_Culture.pdf

Lessig, L. (2007). Larry Lessig on laws that choke creativity. TED Talks. Retrieved from http://www.ted.com/talks/larry_lessig_says_th e_law_is_strangling_creativity.html

Levine, R. (2008). Steal this hook? D.J. skirts copyright law. New York Times. Retrieved from http://www.nytimes.com/2008/08/07/arts/m usic/07girl.html?pagewanted=1&_r=3

Seltzer, L.E. (1979). Exemptions and fair use in copyright. Cambridge: Harvard University Press.

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